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Item C1 " Federal Emergency Management Agency Region IV 3003 Chamblee-Tucker Road Atlanta, Georgia 30341 J~.6LI December 12, 2000 James T. Hendrick County Attorney County of Monroe Office of the County Attorney P.O. Box 1026 Key West, FL 33041-1026 Dear Mr. Hendrick: This is in ~sponse to your November 6, 2000, letter. In your letter you stated that Jim Roberts, County Administrator, asked you to respond to our October 18,2000, letter. Our letter stated that we are continuing to assess the impact of the recent Circuit Court ruling holding that a 4-year statute of limitations applies to County code enforcement and its implications for implementing the inspection procedu~e. In your letter you' stated that "Although the Court may yet clarify or revise its ruling in some particulars (based on your motion for rehearing), we are of the opinion that the holding in LaTorre would not significantly affect the inspection procedure.", ,You further stated that "Although the ruling apparently bars County code enforcement and judicial proceedings against owners of non- conforming structures built more than four years prior to initiation of an enforcement action, it should not preclude the cancellation or non-renewal of insurance policies issued to owners whose structures are in violation ofNFIP requirements." You also indicated the Monroe County Board of County Commissioners directed you to follow-up on the status ofFEMA's re-examination of the policy concerning residential floodproofing. From what we understand of this case, we believe that it could affect not only the inspection procedure, but also Monroe County's ability, in general, to enforce its floodplain management ordinance on buildings in the Special Flood Hazard Area (SFHA) older than four years. With respect to the inspection procedure, we are concerned that as a result of the Circuit Court ruling one of the major purposes of establishing the inspection procedure would not be accomplished. The pilot inspection procedure was established for the following purposes: 1) To help the communities verify that structures comply with the community's floodplain management ordinance and to initiate enforcement actions on those structures that do not comply; and 2) To ensure that property owners are paying flood insurance premiums commensurate with their flood risk. C/ 2 If as a result of this case, the County cannot enforce its floodplain management ordinance on buildings with illegally built enclosures that are older than four years, then the first objective of this procedure cannot be fully achieved. The major reason for developing this inspection procedure is to provide the County an additional means to identify whether buildings are in compliance with the community's floodplain management ordinance so that your community can identify and remedy violations of illegally built enclosures below elevated buildings. The Federal Emergency Management Agency (FEMA) developed this inspection procedure in response to a citizen's task force recommendation. We would not have gone forward with the inspection procedure without the enforcement component as a part of this process. However, the County should be aware of a much larger implication of this case with respect to its participation in the National Flood Insurance Program (NFIP). You indicate in your letter that the ruling is somewhat unclear and therefore the County had filed a motion for rehearing. If the Circuit Court refu~es the motion for rehearing or holds a rehearing and affirms its ruling prohibiting enforcement on buildings older than four years, we would view the prohibition on enforcement as a defect in the County's floodplain management program. A prohibition on enforcing the minimum NFIP requirements in SFHAs for buildings that were built after the County adopted its floodplain management ordinance is not in compliance with the legislation establishing the NFIP and Title 44 Code of Federal Regulations Section 60.2 with respect to a community's participation in the NFIP. Therefore, shoula-the-results of the rehearing confirm the prohibition on enforcement, FEMA would expect the C01,lI!ty.t<?..~ppeal the decision. In response to your question as to the status of FEMA' s re-examination of the policy concerning residential floodproofing, we addressed this issue comprehensively in the Final Rule dated June 27, 2000, for the inspection procedure (Federal Register/ Vol 65. No. 124. Pages 39730-39733). As we indicated in the Final Rule, dry floodproofing is a technically complex flood protection method that can fail due to poor planning, design, construction, and maintenance. This would result in significantly greaterclamages to the building than if the building were built in compliance with current NFIP minimum requirements for residential buildings. Allowing residents to sleep, work, \ recreate, or otherwise occupy the space below the Base Flood Elevation would conflict with sound ) floodplain management by significantly subjecting people who may live in these areas to adverse health and safety risk should the floodproofed system fail. As described in the Final Rule, there are significant constraints associated with dry floodproofing homes that may compromise the level of public safety and property protection envisioned in the NFIP's objectives for people who choose to live in floodplains. FEMA has re-examined the policy on dry floodproofing and our response is addressed in the Final Rule. This policy is consistent with communities' overall responsibility to ensure that the health, safety, and property of their citizens are protected. I .... 3 We look forward to hearing the results of the rehearing and what actions the County intends to take should it be unsuccessful at the rehearing. w~ Brad G. Loar, Chief Community Mitigation Programs Branch Mitigation Division ~~~-~O-~~~! !!.!~ r-~I'IH ro::CU IV '('(1::1 ~~I::I ::>441::1 P.1::}2 Federal Emergency Management Agency Region IV 3003 Chamblee-Tucker Road Atlanta, Georgia 30341 February 5, 200 I The Honorable George R. Neugent Mayor COW1ty of Monroe 35 Ships Way Big Pine Key, FL 33043 Dear Mayor Neugent: This is in response to the December 13, 2000 Resolution adopted by the Board of County Commissioners of Monroe County, Florida titled Resolution No. 533-2000, "A Resolution ofthe Board of County Commissioners of Monroe County, Florida Opposing Demolition of 'Downstairs Enclosures' and inviting renewed discussions with the Federal Emergency Management Agency (FEMA) Concerning its Policy". This Resolution was sent to FEMA under a cover letter dated January 12.2001. from the Clerk of the Circuit Court of Monroe County. In the Resolution, the Board of County Commissioners resolved that: "Monroe County respectfully requests a meeting with FEMA in order to review the National Flood Insurance Program (NFIP) policies concerning floodproofing and other alternatives to removal of downstairs enclosures, as well as ofNFIP underwriting policies applicable to flood insurance for Florida Keys residential properties." We appreciate your concerns and welcome your suggestions for resolving violations of enclosures under your community's floodplain management ordinance. However, we cannot establish a policy that allows floodproofed residential structures because of the serious threat to public safety and the significant increase in the flood risk to the residential structure. We addressed this issue comprehensively in the Supplementary Information to the Final Rule dated June 27, 2000, establishing the inspection procedure (Federal Re2ister/ Vol. 65. No. 124. Pal:!es 39730-39731), a copy of which is enclosed for your reference. As we indicated in the Final Rule, dry floodproofing is a technically complex flood protection method that can fail due to poor planning, design, construction, and maintenance. We addressed in the Rule the constraints associated with dry floodproofing homes that may compromise the level of public safety and propeny protection envisioned in the NFIP's objectives for people who choose to live in floodplains. Not only is there a significantly greater risk of damages to the home compared to one that is elevated, but allowing residents to live in the space below the Base Flood Elevation would subject them to adverse health and safety risks should the floodproofed system fail. FEMA' s policy on dry floodproofing is consistent with a community's overall responsibility to ensure that the health, safety, and property of their citizens are protected. t.! ~~~-~C-~~~! !!'!! ~~MH 1'<t.1:I IV 770 220 5440 P.03 2 Based on the statements under the "Whereas" section of the Resolution, we are very concerned about the COMty'S commitment in protecting structures in Special Flood Hazard Areas in general and specifically, in implementing the inspection procedure. When Monroe County joined the NFIP, it agreed to adopt and enforce the minimum requirements of the NFIP, including the requirements pertaining to enclosures. The objective of the NFIP is to minimize flood related damages to new and substantiaUy improved structures. The major reason for developing the inspection procedure is to provide the County an additional means to identify whether buildings are in compliance with the community's floodplain management ordinance so that the County can identify and remedy violations of illegally built enclosures below elevated buildings. FEMA developed this inspection procedure in response to a Monroe County citizen's task force recommendation and the County's agreement in the form ofa Resolution approved in June of 1998 for us to establish an inspection procedure. Therefore, we proceeded with mlemaking to establish the inspection procedure. As you know, the inspection procedure officially started January 1,2001. With the starting date established, the insurers are now sending the Standard Flood Insurance Policy endorsements to all policyholders in Monroe County and the Village of Islamorada with policy effective dates on and after February 1 S, 200 I, notifying them that they may be required to obtain a community inspection as a condition of renewing their policy. The endorsements serve as the first notice that an inspection may be required. The County has agreed to periodically furnish FEMA with a list of possible violations, This list of violations of insured structures would then be sent to the insurance companies. The insurance companies would then provide the policyholders with a notice six months before the renewal date that an inspection is required before the flood insurance policy can be renewed. It is our understanding that the County has delayed its pan of the implementation until April J, 2001. Because the Final Rule is published and implementation has begun, we expect the County to implement its part of the inspection procedure in accordance with Title 44 of the Code of Federal Regulations (CFR) Section 59.30, including providing us with a list of poSSible violations after April 1. 2001. If the County wishes to propose an alternative that achieves the same objective as the inspection procedure of bringing illegaJly built enclosures into compliance with the County's floodplain management ordinance, we would consider it. In reference to the Resolution's statement on affordable housing, this is part of a much larger affordable housing issue for the County of which the enclosure issue is only a sma)) part. In developing the inspection procedure, we recognized the County's concerns over affordable housing and agreed to implement the inspection procedure over several years to give both the County and the residents Hving in iIlegaJly built enclosures time to find other housing. We. therefore, agreed to the scheduled termination date of December 31, 2007, that the County proposed for implementing the inspection procedure. We believe that this is enough time for the County to address the problem since the County has known about this issue for several years. I ~.... UU ~r..,,"It."~ ....... ""... J L.I In J'\L;..U . V -[(1::1 d~ ~ql::l t-'.1104 3 We are concerned about the statements in the County's Resolution questioning the risk of flooding and flood damage potential in the Florida Keys, particularly with the County's assertion that the coastal A zone in the Florida Keys is "unlikely to sustain wave action sufficient to threaten the integrity of the main building". Monroe County does have a significant flood risk. Our claims data, post-disaster building assessments, and research indicate that not only is the enclosure likely to be damaged or destroyed, particularly if it does not meet the minimum requirements of the NFIP such as having proper openings, but the elevated part of structure is also more susceptible to increased damages due to the improperly built enclosure. We fully addressed these concerns in the Supplementallnfonnation to the June 27, 2000, Final Rule and encourage the Board of County Commissioners to review this infonnation carefully. Furthennore, it is our understanding that on January 19,200 I, the Circuit Court refused to rehear the case on the Court's ruling last October that the state's four year statute oflimitations applies to efforts by Monroe County, Florida to enforce its floodplain management ordinance. While the focus of this case was on the iJIeeaJ enclosures, the County should be aware of a much larger implication of this case with respect to its participation in the National Flood Insurance Program. We would view the prohibition on enforcement as a defect in the County's floodplain management program since it affects all structures in the Special Flood Hazard Area. A prohibition on enforcing the minimum NFIP requirements in Special Flood Hazard Areas for buildings that were built after the County adopted ils floodplain management ordinance is not in compliance with the legislation establishing the NFlP and Title 44 CFR Section 60.2 with respect to a community's participation in the NFIP. Therefore, FEMA expects the County to appeal the decision. In summary, we expect the County to follow through with its commitment to fully implement the inspection procedure to ensure that buildings are compliant with the County's floodplain management ordinance. If you have any questions, please contact Brad G. Loar, Chief, Community Mitigation Programs Branch, Mitigation Division, at 770-220-5416. Sincerely, ~'tt'~~ Acting Regional Director Enclosure TOTAL P.04 Feb 06 01 11: 26a Dann~ L. Kolha,e 305 295 3615 p. 1 Commissioner Murray Nelson RESOLUTION NO. 533 -2000 A RI;SOLUTION OF THI; BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, OPPOSING DEMOUnON OF "DOWNSTAIRS ENCLOSURES'" AND INVmNG RENEWED DISCUSSIONS WITH FEMA CONCERNING IT~ POliCY WHEREAS, the recently-eiected County Commissioners received strong electoral support from Monroe County voters, on platforms challenging the policy of mandatory removal of below base flood elevation primary residential structures ("downstairs enclosures"); and WHEREAS, the BOCC, by Resolution No. 346-1999, found that: · FEMA's new inspection procedure "will certainly result in the elimination of hundreds of residential units now existing below BFE" (Base Flood Elevation). · "Many below 8FE residential units are occupied as affordable housing, a commodity which is already undersupplied." · "The loss of numerous affordable housing units through enforcement of flood plain management pOlicies will cause great hardship to many working families In Monroe County and wilt create advel-se ec::onomic consequences by exacerbating existing labor shortages." · "The NFlP objective of preventing avoidable celtastrophlc property damage is difficult to reconcile with enforcement measures which will result in destruction of hundreds of dwelling units."; and WHEREAS, after adoption of Resolution No. 346-1999, representatives of Monroe County were cordially received, together with members of the Ocean Reef Community, by FEMA Director Jilm_5 Lee Witt, and were assured that alternatives to demolition of downstairs enclosures, particularly the flood proofing of residences, would be evaluated; and WHEREAS, the entire Board of County Commissioners desires to work with FEMA to solve our common problems; and WHEREAS, the great majority of federal flood relief expense is incurred in response to flood events on rivers and tributaries, not sea coasts; and WHEREAS, downstairs enclosures not sited in v zones are unlikely to sustain wave impacts sufflcient to threaten the integrity of the main building; and WHEREAS, federal "ood relief was recently prOvided to the City of Sweetwater, Florida in which several hundred homes were flooded. notwithstanding their lack of flood insurance; and Fe-b 06 01 11:27a D8nn~ L. kOlha,e 305 295 3615 p.2 WHEREAS, according to Monroe County Growth Manag.ment estimates, as manv as 4000 downstairs endosures mav face demolition as a result of FEMA's inspection procedure, unless an alternative to demolition is identified and approved; and WHEREAS, commercial propertv owners are now allowed to obtain flood insurance If thev flood-proof their downstairs endosures, but residential propertv owners ar. denied this remedy; and WHEREAS, a FEMA response to Resolution No. 346-1999, and to the questions raised in MonrO@ County's meeting with Director Witt, is long awaited; now, therefore: BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, that: Section 1. Monroe Countv respectfulIV requests a meeting with FEMA in order to review the NFIP policies concerning floodproofin9 and other alternatives to removal of downstairs endosures, as well as of NFIP underwriting policies applicable to flood insurance for Florida Kevs residential properties. Section 2. The Clerk will send copies of this Resolution to Monroe Countv's federal and state legislative delegation, to Governor Jeb Bush and to FEMA Director .James Lee Witt. PASSED AND ADOPTED bV the Board of County Commissioners of Monroe Countv, Florida, at a regular meeting of said Board held on the 13th day of December, 2000. Mavor George Neugent M~yor Pro Tem Nora Williams issioner Murrav Nelson sioner Dixie Spehar oner Charles McCoy ., .( v~s yes ves ves yes (! Deputy Clerk BOARD Or COUNTY COMMISSIONERS ::J::.E COUNTY, FLORIDA d-- ~o~al:t:-Q jdresMNFEMA C .J cr N L'ol 0 .J .. ...~ I.... (.) 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